West Virginia Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   West Virginia's rule is W. Va. R. Civ. P. 60(b): on motion and just terms, the court may relieve a party from a final judgment, order, or proceeding for these reasons: (1) mistake, inadvertence, surprise, unavoidable cause or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment is satisfied, released or discharged, it is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. The court decides whether a reason is shown.

2. 2

   A Rule 60(b) motion must be made within a reasonable time, and for reasons (1) mistake, inadvertence, surprise, unavoidable cause or excusable neglect, (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), or (3) fraud, misrepresentation, or misconduct by an opposing party no more than a year after the entry of the judgment or order or the date of the proceeding. The one-year cap is tied to those three reasons, so a void-judgment motion under (4) is measured by the reasonable-time standard.

3. 3

   In circuit court, filing does not by itself stop enforcement. Rule 60(c)(2) says the motion does not affect the judgment's finality or suspend its operation. Under Rule 62(c), the court may, in its discretion and on conditions for the security of the adverse party, stay execution or enforcement while a Rule 60 motion is pending, so ask for that stay in writing.

4. 4

   Magistrate court has its own route. Under Magistrate Court Civil Rule 17(a), within 20 days after judgment is entered, any dissatisfied party may file a motion asking that the judgment be set aside and a new trial held; that period is not extended unless the judgment was by default and either service of process or notice of trial was insufficient (Rule 20(c)). Good cause under Rule 17(d) can include newly discovered evidence that could have a substantial effect on the outcome, important evidence hidden by the opposing party, a clearly excessive verdict, or a material mistake in the application of the law.

5. 5

   In magistrate court, a timely motion to set aside does stay execution: Rule 18A says that upon timely filing of an appeal or a motion to set aside the judgment, execution shall be stayed until the motion has been decided. Under Rule 20(c), the time periods for set-aside motions shall not be extended unless the judgment was by default and service of process or notice of trial was insufficient.

6. 6

   For a magistrate court default judgment, Rule 17(e) says good cause may be shown by either excusable neglect or unavoidable cause, and Rule 10(e) says a default judgment may be set aside in accordance with Rules 17 and 20(c). In circuit court, Rule 55(c) says a final default judgment may be set aside under Rule 60(b). For a default judgment, also see /legal-document/set-aside-default/west-virginia.

7. 7

   Rule 60(d)(1) preserves a court's power to entertain an independent action to relieve a party from a judgment, and Rule 60(e) abolishes bills of review and writs of coram nobis, coram vobis and audita querela. Ask the clerk whether the court uses a form for your motion.

West Virginia Requirements for Motion to Vacate

• Listed Reasons

  W. Va. R. Civ. P. 60(b)(1)-(6): mistake, inadvertence, surprise, unavoidable cause or excusable neglect; newly discovered evidence not discoverable with reasonable diligence in time for a Rule 59(b) new-trial motion; fraud or misconduct; a void judgment; satisfied, released or discharged, based on a reversed or vacated judgment, or no longer equitable; or any other reason that justifies relief.

• Time Limits

  W. Va. R. Civ. P. 60(c): within a reasonable time, and for reasons (1) mistake or excusable neglect, (2) newly discovered evidence not discoverable with reasonable diligence in time for a Rule 59(b) motion and (3) fraud or misconduct no more than a year after entry of the judgment or order or the date of the proceeding.

• No Automatic Stay in Circuit Court

  Rule 60(c)(2): the motion does not affect finality or suspend the judgment's operation. Rule 62(c): the court may stay execution pending a Rule 60 motion on conditions for the adverse party's security.

• Magistrate Court 20-Day Motion

  Magistrate Court Civil Rule 17(a), (d): within 20 days after judgment is entered (not extended unless the judgment was by default and either service of process or notice of trial was insufficient, Rule 20(c)), a dissatisfied party may move to set aside the judgment and hold a new trial on good cause, such as newly discovered evidence that could have a substantial effect on the outcome, hidden evidence, an excessive verdict or a mistake of law.

• Magistrate Court Stay

  Magistrate Court Civil Rule 18A: upon timely filing of a motion to set aside the judgment, execution is stayed until the motion has been decided.

• No Extension of Magistrate Deadlines

  Magistrate Court Civil Rule 20(c): set-aside time periods are not extended unless the judgment was by default and service of process or notice of trial was insufficient. Rule 17(e): default good cause is excusable neglect or unavoidable cause.

• Reason and Timeliness Statement

  Name the Rule 60(b) or Rule 17(d) reason relied on, the facts supporting it, the date the judgment was entered, and why the motion meets the time limit for that reason.